The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1887-09-08
MRAD-NoT4s ~ DDCRsuous ~ xUR
SUPREME CoUD1 - DEo91DA.


authorized by previous statutes to be acquired
by the same class OF persons on the same charac
ter Of property.
T. The remedy provided by the statute OF 1885
was intended TO apply only to rights acquired
under that act. The remedy provided BY the
mechanics and laborers hen law of 1868. as
amended in 1877, was not repealed by the act OF
1885, as to q lien acquired under the former act
before the passage of the latter.
5. The allowance under the act of 1885 of an
attorneys fee as costs in favor Of plaintiff in
proceeding to enforce lien acquired under the
lien statute OF 1868 amended in 1877, is error,
and the judgment, in so far as it allows such fee,
ia reversible on appeal
9. Where erroneous proceedings not affecting
the validity of the final judgment in cause have
been instituted by plaintiff and opposed by the
defendant and such proceedings are set aside on
appeal taken by the defendant, the costs of the
same should not be taxed against the defendant
in the judgment.
Attachment proceedings set aside, and judg-
ment reversed in 30 far as it allows the plaintiff
an attorneys fee, but otherwise affirmed.
w. s. Bullock r. McCOnathy, for Appellant;
Jno. G. Reardon, j. W. Couch, for Appellees
X. d. & Thomas Baker, Plaintiffs 10 Error, vs.
Albert L. and Byron Chatfield, Defendants in
Error-Putnam county.
RAHEY, j.:
l. The absence from the appeal transcript OF
copy of the order allowing time for settling bill
of exceptions is not evidence that such an order
was not made and entered in the minutes of the
Circuit Court. A statement in the bill of excep
tons that such an order has been made is, in the
absence of affirmative and clear proof 10 the con-
trary, sufficient evidence of the making and en-
try of such order.
g. Though it is the duty Of Circuit Judge
when trying q civil case, other than an appeal
from a Justice of the Peace, to charge the jury
in writing, yet should he improperly charge oral
ly, no advantage can be taken Of the error, I'M
less an exception has been duly taken to the
charge as oral at the time it was delivered.
3. 1t is not error but proper for a Circuit Judge
to refuse to either direct that q plaintiff lake q
nonsut, or to instruct jury that he has not
proved certain facts which may be material TO
his case.
4 When the record does not show af1rma-
lively that Circuit Judge has erred every ne
cessary presumption is to be made in favor Of
the correctness of his rulings.
S. 1t is error for Circuit Judge to charge a
jury otherwise than upon the law OF the case
To charge that patent, and act of Congress TO
the plaintiffs grantor, and the deed from such
grantOr TO the plaintiffs, show fee simple title
in them and that if the jury find for the plaintiffs
they should say that the plaintiffs have fee sim
pie title and that the homestead title and final
certificate, made to person from whom defend
ants claim, were cancelled by the United States
land officers in 1876 and that no title after this
cancellation existed IN him; and that the stat
utes Of Limitation could not run in favor of any
person until January, A. d. 1879, when the
statute and patent were made to" plaintiffs
grantor, is improper as it is upon the evidence
and facts of the case.
6. A charge which is Objectionable for being
upon the evidence, cannot be held to be unpreju-
dicial to the party Directing to it, where the bill
of exceptions does not contain all the material
evidence adduced on the trial.
Z. Where the objection 10 several instructions
given 10 a jury is general and either instruction
is correct the objection should be overruled, but
where instructions containing several PROPOSE
lions of law requested it is not error for the
Judge to refuse to give the whole if they contain
single erroneous proposition.
judgment reversed and new trial granted.
B. F. Roberts, for Plaintiffs in Errer; Calhoun,
Davis & Gillis, for Defendants in Error.
J. F. Mcclellan, Appellant, vs.. ]. c. Solomon,
Appellee-JacksOn county.
RANEY, j.:
l. The undivided interest of an heir in land
may be attached pending the administration of
the estate of which the land is part The levy
of the writ Of attachment does not dspossess the
administrator. nor interfere with the admins
tratiOn of the estate.
2. Where of several heirs is also the ad-
minisrator of the estate of the person from
equitable lien on his interest in land OF the
estate for the payment of claim they may have
against him on account Of his fraudulent admin
istration of the estate.
3. The lien Of judgment rendered in an &C
ton at law, dates, as to property previously at
tached in such action, from the time OF the levy
of the writ of attachment, and the levy is con-
structve notice from its date to all subsequent
purchasers from the defendant in attachment.
This is so though the property at the time of the
levy was held by a third person, not party to
the suit, under a fraudulent conveyance from the
defendant in attachment.
T. A plaintiff Ia an action at law against his
debtor may levy writ OF attachment on the
undivided interest Of the latter in land held by a
third person under a fraudulent conveyance
from the debtor, and on obtaining judgment may
sell such interest, and the purchaser may in an
action Of ejectment brought by him to recover
this interest from the person in possession raise
the question of the fraud in the conveyance from
the debtor
s. Where bill IS filed by creditors having no
judgment or other lien, 10 Get aside fraudulent
conveyance, and decree is obtained and an un.
divided interest in land so conveyed 10 sold as
the property of the fraudulent grantor, and SUBJ
sequently the same undivided interest is sold
under q judgment against the fraudulent grantor
rendered subsequently to such Decree but in an
action in which q writ of attachment had been
levied on such interest prior to such decree, the
title acquired by the purchaser at the judgment
sale relates back TO the levy of the attachment,
and is superior to that of the purchaser at The
sale under the decree, or to that OF the yendee Of
the latter purchaser.
o. Where In an action of ejectment one of the
parties claims title purchased at q sale under
judgment against fraudulent grantor, and the
other claims title purchased at a sale under a
decree against the same grantOr, which decree
adjudged the conveyance fraudulent and sub.
jected the land 10 sale as the property Of such
sion by the latter party Of the decree and pro-
former from making proof of the fraud in such
conveyance.
Judgment reversed and new trial granted.
John w. Malone, for Appellant; D. l.. Nc
Kinnon, for Appellee
George A. Loflon, Appellant, vs.. N. B. Sterrett,
Appellee-Duval county.
RANEY, j.
1. A resulting trust in real estate may be
proved by parol testimony, but such proof must
be full and clear.
2. Where the testimony not only fails to show
that the complainant Is the equitable owner of
any definite interest 10 the real estate, but does
show acts and conduct upon his part incopss.
tent with claim of such ownership as against
the parties holding the legal title, the trust
should not be decreed
Decree affirmed.
Geo. Wheaton Deans for Appellant; A. w.
Cockrell & Son, for Appellee.
Christine johnson, Appellant, vs. John johnson.
Appellee-Marion county.